IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Monday the 27th day of February, 2017
Filed on 22.12.2014
Present
- Smt. Elizabeth George (President)
- Sri. Antony Xavier (Member)
- Smt. Jasmine D (Member)
in
C.C.No.357/2014
between
Complainants:- Opposite Parties:-
1. Sri. Nandakumar 1. Vitoba Bankers, Thankey Jn S/o Srenivasa Senai Cherthala. Rept by its Partner
House No.8/134, Narasimha pai, S/o Late
South Cherai, SVSS Lane, Babbula Pai, Vayalapuram
Mattanchery.P.O, Cochin House, Thirumala Bhagam.PO
Thuravoor
2.Smt.Maya Devi .R 2. Vitoba Enterprises, Thanki Jn
W/o Nandakumar Rept by its Partner Jayaprakash
House No.8/134, S/o Jayaprakash
South Cherai, SVSS Lane, Vayala puram House, Thirumala
Mattanchery.P.O, Cochin Bhagan P.O Thuravoor
3.Sandhaya, W/o Dileep Kumar
Vitoba Mandir, Thirumala Bhagom
Thuravoor. P.O
4. Sandeep Krishna Bhatt,
S/o Dileepkumar
Vitoba Mandir, Thirumala Bhagom
Thuravoor. P.O
5. Tajadeep Bhutt (Minor)
S/o Sandhaya
Vitoba Mandir, Thirumala Bhagom
Thuravoor. P.O
Preliminary Order
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The 1st opposite party and deceased Dileep kumar received the various deposit from the complainant and accordingly the total amount of Rs. 1,20,000/- deposit by the complainant. Similarly the 2nd opposite party and deceased Dileep kumar received the total amount of Rs. 4,92,837/- by way of deposit from the complainants. It was agreed by the opposite parties that they would repay the deposit amount and interest to the complainant as and when demanded. The complainant had on several occasions approached the opposite parties to return the amount covered under the fixed deposit along with interest. But the opposite parties failed to return the same. Hence the complaint is filed.
2. Opposite parties filed version challenging the maintainability of the complaint. According to the opposite parties there is no cause of action for the complainant and also there is no scope for the complaint before this Forum as the complaint is unsustainable as per the provisions of law. There is no consumer and service vender ship party relationship between the parties. The relation is creditor and debtor and as such by resorting to a suit for recovery of money before the Civil court, there can be redressal for the grievance of the complainant.
3. The point to be considered is whether the complaint is maintainable?
Consumer means any person who hires any service for a consideration. Service is defined in clause (o) of Sub Section (1) of section 2 as inclusive of the provision of facilities in connection with the banking. In the instant case the complainant offered to deposit an amount of Rs. 1,20,000/- and Rs.4,92,837/- in different times in the opposite party by way of fixed deposit. Bank accepted to offer and received the amount thereby agreeing to render banking service to the complainant. There for it can be said that the complainant had hired the banking service of the opposite party for a consideration. Thus the complainant answer the description of ‘consumer’ under the Act and therefore he is entitled to file a complaint if the service rendered by the bank suffer from deficiency in any respect.
4. Another contention raised by the opposite party while arguing the maintainability of the complaint is that the asset of the deceased partner is not liable for any act of the firm. According to the opposite party since the partner of the opposite party firm died, the legal heirs are not liable for any act of the firm. As per section 35 of the Indian Partnership Act, 1932, “ Where under a contract between the partners the firm is not dissolved by the death of a partner the estate of a deceased partner is not liable for any act of the firm done after his death.” In the instant case, claim of the complainant is that the deceased Dileepkumar and first opposite party was the partner of the firm and the complainant deposited the amount at the instance of the deceased Dileepkumar. As per Section 35 of the Indian Partnership Act the asset of a deceased partner is not liable for any act of the firm done after his death only. Since the complainant deposited the amount while Mr. Dileepkumar is alive, the legal hears are liable for any act of the firm done before his death. Hence the complaint is maintainable.
In the result, the complaint is maintainable.
Dictated to the Confidential Assistant transcribed by he corrected by me and pronounced in open Forum on this the day 27th February 2017
Sd/- Smt.Elizabeth George (President) :
Sd/-Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine D (Member) :
// True Copy //
By Order
Senior Superintendent
To
Complainants/Opposite parties/S.F.
Typed by:- br/-
Compared by:-
